Critics agree that much of Southeast Asia desperately needs judicial reform and rule of law. Yet, there is remarkably little comparative scholarship on law and legal institutions in the region. In this blog, I'll follow constitutional developments in Brunei, Burma (Myanmar), Cambodia, East Timor, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand, and Vietnam, as well as the Association of Southeast Asian Nations (ASEAN).

Tuesday, March 19, 2013

Constitutional reform so soon? (Myanmar/Burma)

It appears that there is a consensus to explore amending Myanmar's constitution. Last Friday, according to an official announcement, the Hluttaw announced that it would form a committee of law experts to propose amendments to the 2008 Constitution. The committee hasn't proposed any specific amendments yet, but the assumption seems to be (almost) anything is on the table.

Most media commentary has focused on the potential that constitutional amendments could have for Aung San Suu Kyi's position. Particularly, there is a possibility that the amendments will remove the ban on presidential candidates with foreign dependents. However, Eric Randolph at Irrawaddy reports that many believe the reforms are intended to benefit Pyithu Hluttaw Speaker Shwe Mann. According to the article:

A Western diplomat, speaking on condition of anonymity, told The Irrawaddy last week that he believed some form of back-room agreement has been reached between Suu Kyi and Shwe Mann.

“They feel they can work together—they have some common ground,” said the diplomat. “He is one of the people who has changed the most, and they have a shared interest in strengthening Parliament. She sees it as key to establishing democracy, and he sees it as a potential power base.”

While it's not clear what amendments Shwe Mann's allies are seeking, the broader notion makes sense. Constitutional reform is costly. While many analysts expect Aung San SuuKyi and the National League for Democracy to sweep the 2015 elections, that result is far from guaranteed. For one, as many have noted, the NLD has thus far not succeeded in rejuvenating the party. Daw Suu's charisma remains powerful, yet tarnished after the controversial Letpadaung Commission report. However, the party is alienating young activists, who will likely be key to rounding up votes in a free and fair election. Moreover, the NLD lacks policy expertise. While the NLD might not need a think tank to win an election, it does need credibility.

If there is to be constitutional change, my bet is actually that amendments will transform Myanmar into more of a presidential-parliamentary system along the lines of France. Shwe Mann could carve out a viable role for himself as a "de facto" prime minister, while Daw Suu could serve as a president with reduced powers focused on foreign relations. Frankly, Daw Suu's comparative expertise lies in her ties to the international community so she might be perfectly satisfied in this sort of role. Moreover, as a president, she would be in a position to check that the reforms are not rolled back.

Some commentators have also suggested that the reforms could strengthen the rights of state governments, partly meeting the demands of ethnic minority parties for federalism. Here I'm somewhat more skeptical. First, the ethnic minority parties have yet to prove their electoral viability, especially at the national level. There are dozens of ethnic parties in the Hluttaw, but even after having boycotted the 2010 elections the NLD is still the largest opposition party.

The ethnic groups' political strength really comes from the military strength of ceasefire groups. This power is not inconsiderable. Thein Sein's administration has taken great efforts to negotiate ceasefire agreements and political agreements with most of these groups. However, the Union government would probably still be reluctant to give the states sovereignty, as full federalism would require, if there are still armed groups in control of large swaths of territory. Rather, if anything, I suspect constitutional amendments would expand the legislative schedules of the state governments such that the states have greater jurisdiction over issues like education and natural resources.

It's obviously an exciting time for Myanmar and the possibilities seem endless. However, over the coming weeks it will be important to remember that any constitutional compromise must come as a result of compromise. Constitutional change does not simply mean that "democracy" has won. It will be important to consider exactly how the compromise occurs and which provisions of the constitutions are changed.

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About Dom

Dominic Nardi is a third year Ph.D. student at the University of Michigan in the Political Science Department. He is interested in judicial politics in developing countries, particularly Myanmar, the Philippines, and Indonesia. His dissertation research focuses on how non-state actors influence judicial behavior. In addition to his research at the U of M, he has also worked for legal organizations in Indonesia and the Philippines and has published articles about judicial politics in Southeast Asia both in law reviews and in popular media.